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Dan Malleck is an associate professor of Health Sciences at Brock University in St. Catharines, Ont. He is the author of Try to Control Yourself: The Regulation of Public Drinking in Post-Prohibition Ontario and When Good Drugs Go Bad: Opium, Medicine, and the Origin of Canada's Drug Laws

The Liberal government's cannabis legislation has drawn condemnation and praise. Whether they approve or not, many observers criticize the lack of details on essential aspects of legalization. Legislative lapses include details on where cannabis will be sold, packaging, advertising and how it will be taxed. While such gaps may appear to be weaknesses, they actually demonstrate the legislation's strength.

Dealing with the transition from prohibition to regulation is tricky, involving many unknowns related to consumers' behaviour in the new system, the actions of those who had profited under prohibition and criticism from those who see the substance as dangerous, even immoral.

Canada faced similar problems at the end of liquor Prohibition, and the way those problems were managed is a lesson that can be applied to cannabis. A quick scan of the end of Prohibition will show why the gaps in the government's marijuana legislation are some of its greatest strengths.

Alcohol had been seen for decades as a terrible scourge to the country and humanity. Prohibition was held up as a resounding victory to the progressive forces who sought to elevate the downtrodden; downtrodden as they were not by rapacious capitalism, but by the bottle to which they turned to ease the pain of miserable lives.

But Prohibition went too far, and the popularity of alcohol opened a massive vacuum into which stepped criminals. Crime got a massive boost from Prohibition because it was organized: There were networks of distribution and staff to secure and sell the stuff. The underground economy was massive. The murders and mayhem we see in gangster films did exist, but probably not in such excess. Speakeasies existed too, although many illegal watering holes contained less glitz and opulence and more secrecy and squalor. People wanted a drink.

When Prohibition ended in Canada, the government system that replaced it needed to balance the demands of drinkers with the concerns of the critics. The best way to do this was to implement a system where vendors had no vested interest in profit – the state-run liquor stores were concerned with control, not with revenues. Notwithstanding that revenues from legal liquor sales in Ontario essentially wiped out the government's debt in a matter of years, staff of the Liquor Control Board were constantly reminded that control was literally their middle name.

Disinterested management was one element of success; the other was flexibility. The liquor control authorities may have set up a system that seemed rigid in its implementation, but it was flexible enough to make changes on the fly. If you read the Liquor Control Act of 1927, or the 1934 revision that permitted public drinking in beverage rooms, you will not find many details about how much could be sold, to whom and when. This was the responsibility of authorities who could adjust their regulations as the system unfolded. If one element of the regulation did not work, they could simply tweak it until they got the balance right. Moreover, if something didn't work in one part of the province but did work in another, LCBO staff could adjust their expectations. There was a degree of authorized subjectivity to ensure compliance, reduce the problems of overuse and try to keep everyone happy.

This is why the cannabis legislation has gaps, and why it needs them. Writing every fine detail into legislation would then require an act of Parliament to make any small change. This would be onerous, unworkable and set the system up to failure. Colorado's legal cannabis regime was instituted through a detailed constitutional amendment that laid out most of the fine details of the control that would be put on the system. This was essential for such an amendment to gain support from suspicious citizens, but might prove problematic in the long run. For instance, to change the amount of weed a visitor could buy would require another constitutional amendment, something even more difficult than legislation.

The agility of regulators to make changes as the system unfolds and a respect for regionalism – represented by punting responsibility for many details to the provinces – are necessary structures to make legislation work. In a country as large and diverse as Canada, with a range of opinions on cannabis that vary across the country, it is the best way to ensure success.

The NDP’s justice critic says the legal-marijuana legislation unveiled Thursday by the Liberal government is “long overdue.”

The Canadian Press

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